States and Feds Diverge on Fair Sentencing Practices

A version of this article was originally published in State Court Report on June 7, 2023. This version is updated to include developments in the U.S. Supreme Court.

Of all the unjust features of our criminal legal system, one is particularly shocking: you can serve prison time for charges of which you were acquitted. 

This is exactly what happened to 17-year-old Daytona McClinton. A jury found him guilty of robbing an Indianapolis CVS with a group of friends, an offense that carried a 57– to 71-month prison sentence under the Federal Sentencing Guidelines. The jury said he was not guilty of murdering one of the other people involved in the robbery. But the judge locked him up for decades anyway, noting that the murder was “the driving force in this sentence.”

The practice, called “acquitted conduct sentencing,” is perfectly legal under the U.S. Constitution. The U.S. Supreme Court has refused to consider its constitutionality dozens of times in less than 10 years — even while voicing respect for acquittals in oral arguments earlier this week. The justices’ comments came during the arguments for McElrath v. Georgia, a case considering the scope of the U.S. Constitution’s Double Jeopardy clause, which prevents prosecutors from trying people twice for the same crime. 

“[For] 230 years in this country’s history, we have respected acquittals,” Justice Neil Gorsuch insisted. "A jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system, and we do not ever talk about whether they make sense to us.”

“An acquittal is an acquittal is an acquittal,” he added. 

Justices Sonia Sotomayor also expressed deep hesitancy about invalidating acquittals, and Justice Ketanji Brown Jackson said idea that the decision-making of juries is “inviolate” is a “time-immemorial principle.”

These comments are odds with the Court’s inaction on acquitted conduct sentencing — including in McClinton’s case. The justices declined to take up his case this past summer. 

As the Federal Sentencing Guidelines currently stand, the judge was allowed to punish McClinton for the murder despite his acquittal because she considered it “relevant conduct” for sentencing purposes. The guidelines mandate that a sentence take into account “all acts and omissions committed . . . by the defendant” or his accomplices. But “relevant conduct” need only be proven to the judge by a preponderance of the evidence — often described as 50 percent certainty plus a feather — whereas a jury must acquit if a crime isn’t proven beyond a reasonable doubt. This mismatch in the standard of proof for a conviction versus a harsher sentence lets federal sentences include time for crimes that a jury said the person on trial didn’t commit.

But state supreme courts, which have the power to interpret their state constitutions, provide an independent avenue for addressing this unfair legal loophole for excessive punishment. Although states can’t change federal sentencing practices, fairer state sentences are a crucial step toward a more just criminal legal system. That’s because almost 90 percent of incarcerated people in the country are in state custody, as opposed to federal prison.

Already, people on trial in Hawaii, Michigan, New Hampshire, and New Jersey are protected from serving prison time for acquitted crimes. The supreme courts of those states have declared that punishing someone for acquitted conduct violates the right to a jury trial and due process — specifically, guarantees of fundamental fairness and the presumption of innocence — enshrined in their state constitutions.

As long ago as 1987, the New Hampshire Supreme Court said in State v. Cote that imposing a sentence for acquitted conduct offends “the notion, so central to our system of justice, that until guilt is proven beyond a reasonable doubt, a defendant is innocent.”

Almost two decades later, Hawaii joined New Hampshire. In People v. Koch, its highest court found that a sentencing judge who “assumed that [a person] had engaged in unlawful conduct of which he had been expressly acquitted” offended due process by relying on that assumption to lengthen the person’s prison sentence.

The Michigan Supreme Court echoed this sentiment in 2019. It held in People v. Beck that “once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime,” concluding that the practice “is fundamentally inconsistent with the presumption of innocence itself.” 

In 2021, the New Jersey Supreme Court held in State v. Melvin that “the findings of juries cannot be nullified through lower-standard fact findings at sentencing,” as this undermines the federal and state constitutional right to a jury trial. The court stressed that abiding by a jury’s final verdict is necessary to preserve public trust in the criminal legal system and the rule of law, and as such, “fundamental fairness simply cannot let stand the perverse result of allowing in through the back door at sentencing conduct that the jury rejected at trial.”

Although only a handful of states have outlawed acquitted conduct sentencing, these decisions have the potential to shape legal principles even across state lines. Judges in other states can look to Hawaii, Michigan, New Hampshire, and New Jersey when presented with a challenge to this unjust sentencing practice. And these outcomes contribute to a broader dialogue on acquitted conduct sentencing reform.

The role of state constitutions in curbing this practice becomes even clearer when one considers that it’s not just the U.S. Supreme Court that has allowed acquitted conduct sentencing to continue. Rather, all three branches of the federal government have refused to rein in the practice. Earlier this year, the U.S. Sentencing Commission declined to advance sentencing guideline amendments that would have curtailed the practice — in line with a Department of Justice memo urging the commission to preserve the status quo. And a bill that would have prohibited the punishment of acquitted conduct went nowhere.

The path to fairer sentencing, it seems, starts with the states.

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and senior counsel in the Judiciary Program at the Brennan Center for Justice.